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02/07 - Capital Punishment in Louisiana

Can capital punishment ever be justified?

The bible says take an eye for an eye, so shouldn't the state have the right to kill a murderer in retribution for his or her crime? But, if killing is wrong, how can capital punishment ever be justified? The moral questions are complex and so are the facts.

This month's topic is Capital Punishment in Louisiana. Is it a deterrent to violent crime, or a consequence? Louisiana has one of the highest incarceration rates in the country and some experts think alternatives need to be developed. LPB President and CEO Beth Courtney and LSU Media Law Professor Craig Freeman are your hosts as average citizens express their opinions on the subject and pose questions to a panel of experts.

Find out how our state is dealing with "Capital Punishment in Louisiana," on Louisiana Public Square

Backgrounder

In December 2006, the world watched as former dictator Saddam Hussein was led to the execution chamber, sentenced by an Iraqi court to hang for his crimes against his own people, specifically the murders of 148 people, torture of women and children and the illegal arrest of hundreds of others in a small Iraqi town in 1982. Saddam Hussein's execution sparked debate around the world about the use of capital punishment. Right now, the United States is one of 68 countries that permits the death penalty (see world map), but most executions occur in only a handful of countries. Amnesty International reports that during the year 2005, 2,148 people were executed in 22 countries around the world--- 94% percent of them in China, Saudi Arabia, Iran and the United States.

Earlier this month, European lawmakers backed a move to push the United Nations to adopt a moratorium on the death penalty world wide. The European Union already bans the death penalty in its 27 member states, including Great Britain, Germany, Italy, Ireland, Spain and Greece. Now the E.U. is working to involve the 85 United Nations countries, which signed a non-binding declaration in December 2006 against the death penalty, in lobbying for total world wide ban.

The United States has never had a total ban on execution. In 1972 the U.S. Supreme Court ruled the death penalty, as it was practiced at the time, was "cruel and unusual punishment." In its ruling Furman v. Georgia, several justices expressed grave concern over the fact that statistically, the death penalty was unfairly and arbitrarily being imposed, mostly on African Americans, on the indigent and on the ignorant. As a result of that 1972 ruling, states began crafting new death penalty laws that laid out specific instances in which the death penalty could be considered in cases. Laws that were upheld by the Supreme Court beginning in 1976, allow judges, prosecutors and juries to choose, within limits, when death penalty is or is not a proper punishment. Such laws, the court ruled, had to indicate the sort of aggravating or mitigating circumstances to be taken into account before sentencing, and establish a thorough appeal and review process, if a death sentence is imposed.

Since the death penalty's reinstatement in 1976, 38 states and the federal government have enacted laws detailing sentencing guidelines for the death penalty, and since 1976, 1047 people have been executed in this country. The number of executions by state governments has steadily dropped in the last eight years. In 2006, 53 people were executed in 14 states, down seven from just the year before.

In the past year, eleven states, including Louisiana, have temporarily halted all executions, most of them over concerns that lethal injection is cruel and unusual punishment. In December, a convicted killer in Florida took 34 minutes to die and had chemical burns on his arms after a lethal injection procedure.

Yet, questions over the ultimate guilt or innocence of some death row inmates have sparked other debate over use of the death penalty. In 2000, Illinois Republican Governor George Ryan, issued a moratorium on all executions in his state, after one inmate who had spent 15 years on death row and was within two days of being executed, was exonerated with the help of a group of college students. Another man later confessed and pleaded guilty to the crime. Ryan then stunned the nation in 2003, when he commuted the death sentences of all of Illinois' 156 death row inmates, after concluding the state's processes were, in his mind, "haunted by the demon of error: error in determining guilt and error in determining who among the guilty deserves to die."

While some states have limited use of the death penalty, others, including Texas, Virginia, Missouri, Georgia and Utah, are considering expanding the law to mandate the death penalty in certain cases or to expand the definition of a capital crime. Currently, Texas leads the nation with 383 executions since the reinstatement of the death penalty in 1976. Louisiana stands at 27 executions since the reinstatement, and ranks ninth in the nation for the number of executions per capita. Even though Louisiana has 88 people on death row, the state has not executed anyone since 2002.

Recently, federal prosecutors have become more aggressive in pursuing the death penalty. There are currently 47 people on federal death row, including two for crimes committee in Louisiana. Former New Orleans police officer Len Davis was sentenced to death on two convictions in April 1996 for ordering the murder of a young black woman who witnessed his beating of a witness in an unrelated case. The trigger man in the case, Paul Hardy, was also sentenced to death on two convictions in May 1996.

What is punishable by death in the state of Louisiana? Like most states with the death penalty, First Degree Murder is a capital offense. This means the person committing the crime has killed someone, and has had the intent to kill that person or severely harm the person, but who has also committed another crime at the same time. These are called mitigating factors, legal definitions like aggravated kidnapping, aggravated arson, aggravated or forcible rape, aggravated burglary or armed robbery, drive-by shooting or terrorism.

Other capital murder offenses include murder, with intent, of multiple victims at one time; murder, with intent, while involved in drug transactions; murder for hire; murder, with intent, of a fireman, police officer, peace office or investigator, having to do with that officer's job; and murder with intent of a victim younger than 12 or older than 65. Other cases of murder, including premeditated murder and crimes of passion, do not meet the standard of First Degree murder in Louisiana, and are therefore not eligible for the death penalty.

Louisiana's capital punishment law is unusual, in that is also allows for the death penalty for the rape of a child under the age of twelve, without the act of murder. Louisiana is currently the only state in the country with someone on death row for a crime other than murder. Patrick Kennedy was sentenced to death in the brutal rape of his 8-year-old stepchild in 2003.

Right now, Louisiana's death row is home to some of the most notorious killers in the nation's history. South Louisiana serial killer Derrick Todd Lee brutally murdered 7 women; Former New Orleans police officer Antoinette Frank executed her patrol partner and two others while robbing a restaurant in New Orleans; Shedron Williams, Henry Broadway and Kevan Brumfield were convicted of murdering police officers. Others on death row inmates have been convicted of raping and murdering a child, stabbing an elderly couple in their home, and other horrific crimes.

But Louisiana has also exonerated eight convicted death row inmates since 1976 (see list), either because DNA evidence shows they could not have committed the crime, or because of new evidence or new witnesses not permitted in their trials, or evidence of misconduct by prosecutors in the cases. In a few cases, technical or procedural errors in the way the trial was conducted have lead to new trials or inmates have had sentences commuted to "life." In 2005, four other Louisiana death row inmates had their sentences commuted to life without parole, after the U.S. Supreme Court ruled crimes committed by people under the age of 18, could not be punished by death.

Nationally, public opinion on the use of the death penalty has remained consistent over time. More than 30 years after the Supreme Court reinstated the death penalty, polls show most Americans support capital punishment. Opinions begins to move away from execution, when people are asked if they believe in executing inmates for crimes committed under the age of under 18 or executing the mentally ill, and if people are given a choice of sentencing someone to life without the possibility of parole. A May 2004 Gallup Poll found that a growing number of Americans support a sentence of life without parole rather than the death penalty for those convicted of murder. Gallup found that 46% of respondents favor life imprisonment over the death penalty, up from 44% in May 2003. During that same time frame, support for capital punishment as an alternative fell from 53% to 50%. But, when not offered an alternative sentence, 71% supported the death penalty and 26% opposed. The overall support is about the same as that reported in 2002, but down from the 80% support in 1994.

The debate over capital punishment can be very complex and emotionally charged.Some supporters of capital punishment argue it is an effective deterrent to violent crime. The statistics are not so clear cut. Studies in the last decade have shown there is no measurable cause and effect relationship between trends in the numbers of murders and states where the death penalty is in place. In fact, some studies show the opposite. According to a 2002 FBI Crime Report, the murder rate in the South increased by 2.1%, while the murder rate in the Northeast decreased by almost 5%. The South accounts for 82% of all executions since 1976; the Northeast accounts for less than 1%. The studies also show any drop or increase in murders could also be attributed to a number of other factors independent of the death penalty, including the fluctuations in drug trade, gun availability, or socio-economic conditions.

Other support for the death penalty stems from the idea that the punishment imposed should equal the crime committed. Some argue that certain crimes are so heinous that only the death penalty imposes a level of justice equal to a person's crime. Sometimes family members of crime victims say they are entitled to justice for their brutalized loved ones. Others argue that sentencing someone to death for murder guarantees that the convicted murderer could never face a chance to be released from prison after serving a certain number of years behind bars, although the appeals process is so exhaustive in death penalty cases, there is always the chance a death sentence could be reversed or delayed.

Others who support the death penalty say that it costs the state more to house first degree murderers for life in a maximum security facility than to execute them. Actual figures show that in many states, depending on the age of the inmate at the time of the conviction, the costs of prosecuting a capital murder case, carrying it through the appeals process and an execution can cost as much, if not more, than housing a maximum security inmate for life.

There are also many arguments against using the death penalty. Some faith-based and humanist opposition to the death penalty is based in the belief that society should hold every human life sacrosanct, and that no government institution should ever be involved in the taking of a human life. Many opponents echo the U.S. Supreme Court's 1972 concern, arguing the death penalty is still used unjustly and arbitrarily, mostly on certain segments of society, specifically minorities and the poor. Ninety-five percent of death row inmates cannot afford their own attorney. In 1993, the Louisiana Supreme Court found that there was a "general pattern of chronic under funding of indigent defense services in most areas of the state." The Supreme Court ordered the Legislature to enact indigent defense programs. Still, Louisiana is the only state in the nation that funds its constitutional obligation to provide public defenders through fines levied on court costs, primarily traffic tickets. Aside from being an unreliable funding stream, the indigent defendant's access to resources depends on the parish's ability to bring in its own funds from its court costs. Some death penalty critics argue that court appointed attorneys often lack experience in defending capital cases and are overworked and underpaid.

In Louisiana, private foundations and non-profits have tried to make up the difference for providing experienced legal defense for indigent defendants, with experienced capital defense attorneys, but the cost of mounting a successful capital defense is enormous.

Critics of the death penalty also argue use of the death penalty is racially biased against African Americans and other minorities. Statistics show that African-American defendants are three to four times more likely to receive the death penalty, than are white defendants, and that proportionally, even though African Americans make up about 13.5% percent of the U.S. population, they make up 30% of inmates executed since 1977. Nationally, since 1977 the overwhelming majority of death row defendants, over 80%, have been executed for killing white victims, although African Americans make up about half of all murder victims.

Other critics of the death penalty argue that the justice system is broken and can convict and sentence the wrong person to death. Since 1973, more than 120 people have been released from death rows throughout the country. In the last decade, the use of DNA evidence has been able to prove that some death row inmates have, in fact, been innocent. In other cases, new evidence or witnesses who did not testify at a death penalty trial, have been the basis of appeals and have led to new trials in many cases. There have even been very rare instances in Louisiana in the last ten years, where a prosecutor's misconduct in the case, either hiding witnesses or evidence, led to a false conviction.

In other cases, higher courts have overturned sentences based solely on procedural mistakes in the trial process. In these cases inmates who may, in fact, be guilty get a new trial because of these errors. In rare instances, government attorneys faced with re-prosecuting a case from decades earlier no longer have access to the witnesses, or the evidence to retry the case, so the inmate can go free. Legal scholars argue that it is always the state's burden to prove guilt in a case, regardless of how much time has lapsed.

Finally, many argue the death penalty is constitutionally barred because it is fundamentally "cruel and unusual punishment." Over the years, courts and states have agreed that certain forms of execution should be banned such as the gas chamber and electrocution. In Louisiana in 1983, following the publication of post-mortem photographs of an executed Louisiana inmate, the state passed a law outlawing electrocution as the method of execution, in favor of lethal injection.

Recent incidents involving the use of lethal injection, including the Florida case this past December, have led to the renewed debate over whether that is "cruel and unusual punishment." Those raising lethal injection challenges generally claim that the drugs used in the executions cause extreme and unnecessary pain, and that the combination of chemicals used masks the pain being experienced by the inmate from the sight of those administering the death penalty. The appeals assert that this is a violation of the Eighth Amendment's ban on cruel and unusual punishments. Those challenging the procedure say that if the first chemical is not properly administered, an inmate may remain conscious and die an excruciating death from the other two chemicals. Critics contend mistakes are likely, because correctional officers, not medical practitioners, administer the fatal dose in most states, but medical doctors are barred by medical standards and the Hippocratic Oath from administering such drugs to cause death. Initial rulings from federal District Courts in California and Missouri have held the procedures in those states to be unconstitutional because they lack sufficient safeguards and oversight to ensure the orderly application of lethal injection. These new questions over the administration of lethal injection have led states like Louisiana, Arkansas, California, Delaware, Kentucky, and Missouri to temporarily suspend executions.

I would add something about the victims. With their well being in mind, consider that
•First of all, to avoid the death penalty the rapist is more likely to kill the key and only eyewitness, namely his victim.
•Secondly, rape and abuse of children is already one of the most underreported crimes, because they are most often committed by fathers, uncles, and family friends. If the perpetrator can face the death penalty, the crime will be even less likely to be reported.

Posted by jercy on 02/27 at 12:57 PM

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Current Topic

The school shooting in Broward County Florida that took the lives of 17 people has reignited the debate over how to make our schools safe. Energized students nationwide are calling for restricted access to certain guns. Congress is considering broader background checks and age limits on gun purchases. President Donald Trump is most enthusiastic about training school staff members to carry concealed weapons.

Where does Louisiana stand in this national discussion? How would gun control proposals affect the 45% of Louisianans who own guns? What mental health services are available to prevent teenagers from acting out violently? What increased security measures should schools take and how much will they cost? Louisiana Public Square looks for answers to these questions and more on “Making Schools Safe” airing Wednesday, March 28 at 7 p.m. on LPB and WLAE in New Orleans. (Taping Tuesday, March 27.)